The Filibuster, Executive Power, and the President’s Power to Adjourn Congress

It is no secret that the use of the filibuster has grown substantially in recent years. (I documented the growth at pp. 1008-11 of this article.) In the new issue of CQ Weekly, Ben Weyl notes yet another expansion of the filibuster: Senate Republicans are currently filibustering Richard Cordray’s nomination to head the Consumer Financial Protection Bureau (CFPB), not because they have any particular objection to him, but simply because they want changes in the underlying law (Dodd-Frank). As Weyl’s article relates, Sen. Sherrod Brown noted at a Senate Banking Committee hearing that the Senate historian could not remember another instance of this occurring.

One major effect of the filibuster is to expand presidential power, as I argue at pp. 41-47 of my new article draft. In the case of substantive legislation, this means that more gets done via regulation than legislation — consider the number of EPA regulations dealing with global warming (nicely documented by Jonathan Adler in this article (link is to a PDF)) — after the Senate filibustered the cap-and-trade bill that passed the House in 2009. Likewise in the nominations arena: A President whose nominee had been voted down would find it politically nearly impossible to recess appoint that person. Additionally, federal law forbids the government to pay the salary of someone who is serving in a position after the Senate has voted not to confirm her for that position. But a President whose nominee has been filibustered presents a very different situation. The President can argue that he is not disregarding the will of the Senate; rather, minority obstructionism has left the Senate unable to express its will. This, for example, is what the President did in recess appointing Donald Berwick to head the Center for Medicare and Medicaid Services, and it is what he originally did in appointing Elizabeth Warren as a Special Assistant to the President and to the Secretary of the Treasury with the responsibility of setting up the CFPB, rather than nominating her to actually run the CFPB. Indeed, when it was still thought that the President might nominate Warren to actually run the CFPB, Katrina vanden Heuvel, writing in the Post, urged the President to use a recess appointment, noting that “[p]urblind Republican obstruction liberates the president to do the right thing.” A masthead editorial in the Times took almost exactly the same tack.

Ah, but some will say, the House of Representatives can prevent the President from making recess appointments. Here’s how: Article I, sec. 5, cl. 4 of the Constitution provides that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” Since the consensus (including among executive branch lawyers) is that, at the very least, a recess must be longer than three days to allow the President to make a recess appointment, the House can prevent recess appointments simply by refusing to agree to any Senate request to adjourn.

Not so fast. Article II, sec. 3 provides that “in Case of Disagreement between them [the houses of Congress], with Respect to the Time of Adjournment, he [the President] may adjourn them to such Time as he shall think proper.” So, in other words, if the House and Senate can’t agree on adjournment, the President can adjourn them both. (The limit on complete executive abuse of power here is the requirement in both Article I and in the 20th Amendment that Congress must assemble at least once per year, so the President cannot adjourn them for longer than that.) Creating a disagreement between the houses would be easy for the Senate majority — a motion to adjourn is privileged and non-debatable, which means that it cannot be filibustered and must be voted upon immediately. So, the Senate majority, by bare majority, could vote to adjourn for more than three days. The House could either (a) concur, which would allow the President to make a recess appointment, or (b) refuse to concur, in which case the President could adjourn the houses for more than three days, and then make a recess appointment.

Now, no President has ever exercised his power to adjourn the houses, largely because there has never really been cause to do so. But if the Senate minority continues to be indiscriminately obstructionist, pressure will continue to grow for recess appointments, and the President will have a strong rhetorical case that 40 Senators should not be able to prevent important posts from being filled. If the House then chooses to obstruct the Senate’s ability to recess, it does not seem a stretch that the President, in consultation with the Senate majority leadership, would begin exploring the route described above.

Once again, the filibuster pushes the President to expand executive power. Growing use of the filibuster encourages growing use of recess appointments. A different but related form of obstructionism — the House refusing to let the Senate adjourn — could lead to the President’s unprecedented exercise of his power to adjourn. And the houses of Congress continue to shoot themselves in the foot by making injudicious use of their constitutional powers.

(A final note: I do not have any objection per se to the Senate’s use of the appointments power as a tool to get what it wants in other substantive areas. Indeed, I would applaud this more vigorous use of its constitutional power, just as I applaud the House for making vigorous use of its power of the purse in inter-branch conflicts. But a Senate up-or-down vote is categorically different from a filibuster. Senate rejection of a nominee would not “liberate” (to use vanden Heuvel’s word) the President to act unilaterally.)